What role, if any, should morality play in antitrust? This is an underexplored question that is the theme of a new working paper by the Maurice Stucke of the DOJ Antitrust Division entitled Morality and Antitrust.

Abstract: Although the Sherman Act was enacted over a century ago, antitrust
enforcers, policy makers, and scholars have largely circumvented the
morality of antitrust crimes. Its absence is remarkable given the
vigorous debate over the appropriate civil and criminal penalties for
antitrust violations. Under the continued influence of the
Chicago-school's neoclassical economic theories, antitrust analysis is
primarily concerned with economic efficiency. Since terms like morality
and evil are judgmental, not descriptive, they are deemed outside the
discourse of economic theory's self-described positivism. But antitrust
analysis is not beyond the judgmental. Over the past thirty years,
while antitrust's civil remedies have remained relatively unchanged,
the criminal penalties for price fixing, bid rigging, and other Sherman
Act antitrust violations have soared - from a misdemeanor to a felony
punishable by up to ten years imprisonment. If the criminal laws
reflect society's moral judgments, then antitrust and morality
ultimately are intertwined. This article provides a background of
antitrust violations and the flawed economic theory of optimal
deterrence that has played a critical role in shaping the criminal
sanctions for Sherman Act violations. Despite the escalation in
antitrust's criminal penalties, there is no clear evidence that optimal
deterrence has been achieved. The article next introduces morality and
asks what role morality could play in the field of antitrust, if
optimal deterrence alone is insufficient to effectively deter
violations. After examining under a three-part standard whether
antitrust crimes can indeed be deemed immoral, the article weighs some
of the benefits and risks of supplementing antitrust crimes with a
moral component and the risks of the current course - namely, ignoring
morality.